Daniel W. Shoemaker, York, for appellant.
Joseph C. Madenspacher, Assistant District Attorney, Lancaster, with him D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 212]
Following a jury trial, appellant was found guilty of possession of a controlled substance with intent to deliver.*fn1 Post-verdict motions were denied, and appellant was sentenced to pay a fine of $1,500 and to serve a prison term of two to five years. Appellant now contends that the charge against her should be dismissed because the Commonwealth violated her right to a speedy trial under Pa.R.Crim.P. 1100.*fn2
[ 254 Pa. Super. Page 213]
For the following reasons, we are constrained to agree with appellant's contention.
On February 9, 1975, a criminal complaint was lodged against appellant charging her with violating The Controlled Substance, Drug, Device and Cosmetic Act.*fn3 Under the precept of Pa.R.Crim.P. 1100(a)(2),*fn4 the Commonwealth had 180 days, or until August 8, 1975, to bring appellant to trial. On May 9, 1975, appellant petitioned the court below to suppress certain evidence.*fn5 A hearing on appellant's motion to suppress was reserved by the lower court until the time of trial. A two day suppression hearing commenced on May 28, 1975, and on November 7, 1975, the lower court dismissed appellant's application to suppress. Trial began on November 17, 1975, 281 days after the filing of the complaint.
The Commonwealth, citing the Comment to Rule 1100, argues that "trial", for purposes of time calculations under Rule 1100, did not commence on November 17, 1975, but rather on May 28, 1975, prior to the expiration of the mandatory period, when the hearing on appellant's motion to suppress was conducted. The question which we must therefore decide is when did "trial" commence in the instant case.
Initially, we note that Rule 1100 itself provides merely that: "For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial." The Comment to Rule 1100, however, explains further that:
"It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties
[ 254 Pa. Super. Page 214]
are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to ...